The Legal Story

InSite opens

In September 2003, Health Canada, under the Liberal government, granted the Vancouver Coastal Health Authority (VCH) a limited exemption from Canada's drug trafficking and possession laws under section 56 of the Controlled Drugs and Substances Act (CDSA). The exemption allowed VCH, in partnership with the PHS Community Services Society (PHS), to open North America's first safe injection facility, known as InSite. Exemptions under section 56 of the CDSA are often extended to scientists, doctors, etc. so that they can legally work with illegal drugs for research purposes.

In September 2006, the Federal Minister of Health under the then-new Conservative government announced an extension to the site's exemption that allowed InSite to operate for another 15 months, until the end of 2007.

B.C. Supreme Court

Faced with the possibility of InSite's closure, in August 2007, the PHS along with InSite users, Dean Wilson and Shelley Tomic, filed a constitutional claim in the B.C. Supreme Court. The plaintiffs' claimed that, as a health care facility, InSite falls under the exclusive jurisdiction of the provincial government. In the alternative, the plaintiffs claimed, denying users access to health services at InSite would violate the users' rights to life, liberty and the security of the person under section 7 of the Canadian Charter of Rights and Freedoms.

On October 4th, 2007, Minister of Health Tony Clement announced an additional 6-month extension to June 30th, 2008. The Minister rejected demands for a long-term solution, fueling concerns that he was preparing to end InSite's exemption.

The InSite case was heard by Mr. Justice Pitfield of the B.C. Supreme Court in March 2008. In May 2008, the Court released its decision. Mr. Justice Pitfield dismissed the plaintiffs' claim that jurisdiction over InSite was exclusively provincial. However, Mr. Justice Pitfeild ruled that, applied to users and staff at InSite, sections 4(1) and 5(1) of the CDSA, which prohibit possession and trafficking of banned substances, violate section 7 of the Canadian Charter of Rights and Freedoms and are constitutionally invalid. The Court suspended the declaration of invalidity until June 2009, to give Parliament the opportunity to amend the law to bring it into compliance with constitutional requirements. The Court also granted InSite a constitutional exemption to continue to operate in the interim.

Court of Appeal for British Columbia

The federal government immediately appealed the Court's decision, and the PHS and the two InSite users cross-appealed Judge Pitfield's dismissal of the claim to exclusive provincial jurisdiction.

While the appeal and cross-appeal were before the B.C. Court of Appeal, the suspension of the declaration of invalidity of section 4(1) and 5(1) of the CDSA was continued.

On January 15th, 2010, in a split 2-decision, the B.C. Court of Appeal dismissed the government's appeal and allowed the cross-appeal. The majority of the Court of Appeal applied the constitutional doctrine of interjurisdictional immunity and held that section 4(1) of the CDSA is not applicable at InSite. The Court of Appeal found that it was not necessary to address section 5(1) of the CDSA.

Supreme Court of Canada

On February 9, 2010, the federal government applied to the Supreme Court of Canada for leave to appeal the decision of the B.C. Court of Appeal. The Supreme Court of Canada has decided to hear the case on May 12, 2011.

On September 30, 2011, all nine judges of Canada's highest court ruled that attempts by the country's conservative federal health minister to close Insite contravened the country's charter of rights by threatening the lives of injection drug users. The legal ruling clears the ground for other jurisdictions in Canada, and perhaps North America, to implement supervised injection and harm reduction as part of the standard of healthcare. The legal case is a cultural landmark that validates the personhood of people with addictions while metaphorically unchaining them from the criminal justice system.